No. 17.

ef, for and upon any Judgement, Statute or Recognizance hereafter to be made or had, to do, make and deliver Execution unto the Party 29 Car. 11. e 3. in that Behalf, suing, of all such Lands, Tenements, Rectories, Tithes, Rents, and Hereditaments, as any other Person or Persons be in any Manner of Wise seised or possessed, or hereafter shall be seised or possessed, in Trust for him against whom Execution is so sued, like as the Sheriff or other Officer might or ought to have done, if the said Party against whom Execution hereafter shall be so sued, had been seised of such Lands, Tenements, Rectories, Tithes, Rents, or other Hereditaments of such Estate as they be seised of in Trust for him at the Time of the said Execution sued; (28) which Lands, and held free from Tenements, Rectories, Tithes, Rents, and other Hereditaments, by the incumbrances Force and Virtue of such Execution, shall accordingly be held and of the Persons selenjoyed freed and discharged from all Incumbrances of such Person or Persons as shall be so seised or possessed in Trust for the Person against whom such Execution shall be sued; (29) and if any Cestuy Trust shall be As que Trust hereafter shall die, leaving a Trust in Fee-simple to descend sets in the Hauds to his Heir, there and in every such Case such Trust shall be deemed and taken, and is hereby declared to be, Assets by Descent, and the Heir shall be liable to and chargeable with the Obligation of his Ancestors for and by Reason of such Assets, as fully and amply as he might or ought to have been, if the Estate in Law had descended to him in Possession in like Manner as the Trust descended; any Law, Custom or Usage to the contrary in any wise notwithstanding.

sed in Trust.

of Heirs.

2 Vern. 248,

c. 232.

of ins own Estate.

XI. Provided always, That no Heir that shall become chargeable No Heir shall by by Reason of any Estate or Trust made Assets in his Hands by this Reason thereof be Law, shall by Reason of any Kind of Plea or Confession of the come chargeable Action, or suffering Judgement by Nient dedire, or any other Matter, be chargeable to pay the Condemnation out of his own Estate; but Execution shall be sued of the whole Estate so made Assets in his Hands by Descent, in whose Hands soever it shall come after the Writ purchased, in the same Manner as it is to be at and by the Common Law, where the Heir at Law pleading a true Plea, Judgement is prayed against him thereupon; any Thing in this present Act contained to the contrary notwithstanding.

able.

Hand.

XII. And for the Amendment of the Law in the Particulars following; be it further enacted by the Authority aforesaid, That from Estates pur auter benceforth any Estate pur autre vie shall be deviseable by a Will in vie shall be devise Writing, signed by the Party so devising the same, or by some other And shall be AsPerson in his Presence and by his express Directions, attested and sets in the Heir's subscribed in the Presence of the Devisor by Three or more Wit- And where there nesses; and if no such Devise thereof be made, the same shall be is no special Oc chargeable in the Hands of the Heir, if it shall come to him by Reason upant, shall go to of a special Occupancy, as Assets by Descent, as in Case of Lands in Carthew. 376. Fee-simple; and in Case there be no special Occupant thereof, it shall 2 Salk. 464. go to the Executors or Administrators of the Party that had the 2 Vern. 719, Estate thereof by Virtue of the Grant, and shall be Assets in their c. 307. Hands. (30)

(28) If the Trustee convey Lands after Judgment and before Execution to a Purchaser with Notice, the Land cannot be taken in Execution.-Hurst v. Coles, Comyns 226.-Higgins v. York Buildings Comp. 2 Atk. 107. Query, Whether the Land is liable in Case the Purchaser has Notice.-See Sugden on Venders and Purchasers, Ch. 9. on Searching for Incumbrances. A Conveyance in Trust to sell and pay Debts, and the Surplus to the Grantor is not a Trust within the Statute.-Ibid.

(29) A mere equitable Interest in a Term of Years cannot be taken in Execution under a Fi. Fa Scott v. Scholey, 8 East. 467. 2 N. R. 461.

(30) By Statute 14 Geo. II. c. 20, Sec. 9, after reciting this Section, and that Doubts had arisen where no Devise had been made of such Estates, to

the Exectors

No. 17.

29 Car. II. c. 3.

the Roll.

XIII. And whereas it hath been found mischievous, that Judgements in the King's Courts at Westminster do many Times relate to the first Day of the Term whereof they are entered, or to the Day of the Return of the Original, or Filing the Bail, and bind the Defendants Lands from that Time, although in Truth they were ' acknowledged, or suffered and signed in the Vacation Time after 'the said Term, whereby many Times Purchasers find themselves aggrieved:'

XIV. Be it enacted by the Authority aforesaid, That, from and The Day of sign after the said Four and Twentieth Day of June, any Judge or Officer ing any Judgment shall be entered of any of his Majesty's Courts of Westminster, that shall sign any on the Margent of Judgements, shall, at the signing of the same, without Fee for doing This Clause ex- the same, set down the Day of the Month and Year of his so doing tends to Counties upon the Paper Book, Docket, or Record, which he shall sign; which Palatine by 8 Gco. Day of the Month and Year shall be also entered upon the Margent of I. c. 25, sec. 6. the Roll of the Record where the said Judgement shall be entered.

Purchasers shall

LO

XV. And be it enacted, That such Judgments as against PurAnd such Judge chasers (31) bona fide for valuable Consideration of Lands, Tenements, ments as against or Hereditaments, to be charged thereby, shall, in Consideration of relate such Law, be Judgements only from such Time as they shall be so signed, and shall not relate to the First Day of the Term, whereof they are entered, or the Day of the Return of the Original, or filing the Bail; any Law, Usage, or Course of any Court, to the contrary notwithstanding.

enly.

whom the Surplus after the Death of such deceased Owners thereof are fully satisfied should belong, it is enacted, that such Estates pour autre vie, in Case there be no special Occupant thereof, of which do Devise shall have been made according to this Act, or so much thereof as shall not have been so devised shall go to, be applied and distributed in the same Manner as the Personal Estate of the Testator or intestate.

There was no general Occupancy at Common Law of a Copyhold, and therefore these Statutes do not extend to such. Zouch. dem --Foise v. Foise, 7 East. 186. Although there was no general Occupancy of a Rent at Common Law it seems to be within the Statutes.-Rawlinson v. the Duchess of Montague, 3 P. Wms. 264 n. Kendal v. Micfield, Barnard Ch. 46. In Oldham v. Pickering, 2 Salk. 464, it was ruled in Prohibition that the Statute of Frauds enly made Estates pur auter vie assets for the purpose of paying Debts, and not for the Purpose of Distribution, but in Witter v. Witter, 3 P. Wms. 101, they were held to be distributable in Chancery -Any Question upon this Point is removed by Stat. 14, Geo. II -In Ripley v. Waterworth, 7 Vesey 425, it was held on much Discussion that an Estate pur auter vie limited to Executors, Administrators and Assigns, was applicable to the Residuary Legatees of the Testator under a Will not attested by three witnesses, although devisable only as to the legal Estate by a Will so attested.-Upon a Limitation in a Lease for Lives to Heirs, Executors, Administrators and Assigns, the Interest goes to the Heir Atkinson v. Baker, 4 T. R. 229. I have seen opposite Opinions of Mr. Fearne and Lord Kenyon, as to the Case of Premises held under a Lease for Lives, to the Lessee, his Heirs and Assigns, devised by him without Words of Limitation, and the Right to which was disputed between the Heir and personal Representative of the Devisee.-The Opinion of Lord Kenyon was, that the personal Representative was entitled, which seems evidently correct, as there was no designatio personæ of the Heir of the Devisee, wherefore the Case is, that of there being no special Occupant, so that by the Statute of Frauds the Estate devolves on the Executors.

(31) Except as against Purchasers the Land is bound as at Common Law from the first Day of the Term of which Judgment is signed-See Sewil v. Wiltshire, Willes 428, n. In Holdger v. Templar, 6 Mod. 191, it is said by Lord Holt, C. J. that if Judgment be signed in Term Time, and in the subsequent Vacation the Defendant sell Lands, and before the Essoign Day of the next Term the Plaintiff enter his Judgment, it shall affect the Land in the Hands of the Purchase, but Mr. Tidd (Practice, ch. 39 n.) makes a Q. If the Judgment be not docketed at the Time of the Sale.

No. 17.

Writs of Execu

but from the Time

XVI. And be it further enacted by the Authority aforesaid, That, from and after the said Four and Twentieth Day of June, no 29 Car. II. c 3. Writ of Fieri facias, or other Writ of Execution, shall bind the tion shall bind the Property of the Goods (32) against whom such Writ of Execution is Property of Goods sued forth, but from the Time that such Writ shall be delivered to of their Delivery the Sheriff, Under Sheriff, or Coroners, to be executed: And, for to the Officer. the better Manifestation of the said Time, the Sheriff, Under Sheriff, 1 Salk. 320. and Coroners, their Deputies and Agents, shall, upon the Receipt of Carthew 419. any such Writ, (without Fee for doing the same) endorse upon the 1 Mod. 188. Back thereof the Day of the Month or Year whereon he or they receive the same.

2 Keb. 257.

Thuan. Hist. lib.

XVII. And be it further enacted by the Authority aforesaid, Contracts for Sales That, from and after the said Four and Twentieth Day of June, no of Goods for Tea Contract for the Sale of any Goods, Wares, and Merchandizes, (33) Pounds or more for the Price of Ten Pounds Sterling, or upwards, shall be allowed 39. sec. 25. to be good, except the Buyer shall accept Part of the Goods so soid, See 4 Bar. 2101. and actually receive the same, (34) or give Something in earnest to bind the Bargain, or in Part of Payment, or that some Note or Memorandum in Writing of the said Bargain (35) be made and

(32) It was determined soon after the Passing of this Act, that it was only made to assist a Purchaser, and that it left the Party to the Suit as he was at Common Law -Skin 257, which was recognised by Lord Hardwicke, 2 Eq. ca. ab. 381, and per Curiam Hutchinson v. Johnson, 1 T. R 729. A Judgment signed in any Part of the Term, or the subsequent Vacation, relates back to the first Day of the Term notwithstanding the Death of the Defendant before Judgment actually signed, and an Execution against the Goods of the Defendant may be taken out upon it tested the first Day of the Term.-Bragner v. Langmead, 7 T. R. 20, and see the Cases there cited.

(33) It was ruled in Towers v. Osborne, 1 Str. 506, that the Ordering a Carriage to be made, and afterwards in Clayton v. Andrews, 4 Burr. 2101, that a Contract for the Purchase of Corn which was to be thrashed was not within the Statute, and in these Cases the Principle was laid down that the Statute did not extend to executory Contracts to be performed at a future Time-but that Doctrine is now completely exploded.-Alexander v. Comber, 1 H. Bl. 20.-Rondeau v. Wyatt, 2 H. Bl. 63-Cooper v. Elston, 7 T. R. 14, but the decisions in Towers v. Osborne and Clayton v. Andrews, are admitted to be good Law as relating to Contracts which were not confined to a mere Sale of Goods, and consisted partly of Labour to be performed.

(34) WHAT IS AN ACCEPTANCE AND DELIVERY.-1. A Purchaser by Auction coming the next Day to see the Goods weighed off-Simon v. Metivier, 3 Burr. 1921, 1 Bl. 598.-2. The Purchaser of a Haystack selling Part of it to another Person who takes that Part of it away against the Approbation of the Vendee, the Party having dealt with it as in his own Possession.-Chaplin v. Rogers, 1 East. 192.-3. The Desiring the Seller of a Horse to keep it at Livery for the Buyer.-Elmore v. Stone, 1 Taun. 458.-4. Purchaser by Auction writing his Name on a particular Article as to that Article secus as to others.-Hodgson v. Le Bret, 1 Campb. 233.-Anderson v. Scott, n. ibib. 5. The Purchaser at an Auction taking Samples to be included in the Price.-Hinde v. Whitehouse, 7 East. 558.

II. WHAT NOT-1. Taking a Sample not forming part of the Quantity to be paid for.-Cooper v. Elston, 7 T. R. 142. Ordering Goods by Parol at 11s. per Pound, and returning them with a Letter stating that they are not worth 6s.-Kent v. Huskinson, 3 Bos. & Pull. 233.

takes the

(35) A Memorandum by the Buyer agreeing to give Case out of the Statute, although not expressing any Consideration.—The Word Bargain in this Section not being held to have the same technical Signification with the Word Agreement in Section 4-Egerton v. Matthews, 6 E. 307. As to this Distinction, See Fells Law of Guarantee, referred to ante Note 9.

No. 17.

29 Car. II. c. 3

The Day of the

cognizances shall

signed (36) by the Parties to be charged by such Contract, or their Agents thereunto lawfully authorized. (37)

XVIII. And be it further enacted by the Authority aforesaid, Enrolment of Re- That the Day of the Month and Year of the Enrolment of the be set down, and Recognizances shall be set down in the Margent of the Roll where Lands in the the said Recognizances are enrolled; and that from and after the said Hands of Purcha- Four and Twentieth Day of June, no Recognizance shall bind any that Time only. Lands, Tenements, or Hereditaments in the Hands of any Purchaser bona fide and for valuable Consideration, but from the Time of such Enrolment; any Law, Usage, or Course of any Court, to the contrary in any wise notwithstanding,

sers bound from

Nuncupative

Wills.

XIX. And, for Prevention of fraudulent Practices in setting up Nuncupative Wills, which have been the Occasion of much Perjury; be it enacted by the Authority aforesaid, That, from and after the aforesaid Four and Twentieth Day of June, no Nuncupative Will shall be good, where the Estate thereby bequeathed shall exceed the Value of Thirty Pounds, that is not proved by the Oaths of Three

(36) The Court of Common Pleas, in Sanderson v. Jackson, 2 B. & P. 238, seemed to think the printed Title of a Bill of Parcels," Mr. Bought of Jackson & Hankin," a sufficient Signature-but at all Events, that a Letter from the Defendant, the Seller, to the Plaintiff, wishing to know when the Order should be delivered, took the Case out of the Statute, on the Ground that the Jury had connected the Letter with the Bill of Parcels. But surely, with Regard to the first Point, to use, with a slight Variation, the Terms of the Chief Baron, in Stokes v. Moore, referred to supra, (Note 10,) a Name inserted at the [top] of an Instrument, and applicable to particular Purposes, could not be intended to be such an Authentication as the Statute required. As to the second Point, although the Letter referred to the Contract, it seems very doubtful, whether it was intended to refer to the particular written Evidence of the Terms of such Contract; and it could not be collected from the Letter itself, that there was any other Writing to which a Reference could be made. The Point does not appear to have been distinctly put to the Jury, and as this Part of the Case is wholly decided upon the Foundation of the Jury having found such Reference, the Case, as an Authority, amounts to no more than that the Evidence in Question was such as it was proper to leave to the Jury, upon the Point whether the Reference to the previous Since the pre- Writing was intended or not-and as to the Cases decided with Reference to paring this Note it this Principle, upon Sect. 4, see the Notes to that Section. A Note signed the inserting the by the the Seller in the Plaintiff's (the Buyer's) Memorandum Book, not Name of the Buyer mentioning the Plaintiff's Name, is not sufficient.-Champion v. Plummer, at the Head of a 1 N. R. 252.-Entry by the Plaintiff's Agent, in his Memorandum Book, not Bill of Parcels above the printed containing any Thing on the Face of it to shew it was a Book of Orders to the Words, Bought Plaintiff, in the following terms:-" John Smith-40 of 3—58. £—." (exof Thomas Norris," plained to mean an Order for forty Sacks of Flour, called Thirds, at 58s. a Sack,) was a suficie at sig read over by the Defendant's Desire, is not a Memorandum within the StatuteSeller-Schneider and a Letter, in which the Defendant admitted the Contract, but stated a v Norris, 2 M. & certain Time as forming a Part of it, but proved by parol Evidence not to do S. 286. so, cannot supply the Deficiency.-Cooper v. Smith, 15 East. 103.

has been held, that

nature to bind the

(37) In Simon v. Metivier, mentioned supra Note 34, it was held, that an Auctioneer was Agent to both Parties, and that his setting down the Name of the Seller was sufficient to take the Case out of the Statute-and the Court were strongly inclined to think, that Sales by Auction were not within the Statute, but that as a general Proposition cannot be sustained, as appears by several of the Cases mentioned in the preceding Notes to this Section-but the Doctrine of the Entry of the Sale by the Auctioneer, being a Contract signed by him as Agent for both Parties, is established.-Emmerson v. Heelis, 2 Taunton, 38.-See Hinde v. Whitehouse, 7 East. 569, cited supra Note 34. -See also the Cases upon this Subject, as affecting Sales of Land, ante Note 14. The Writing of a bought and sold Note by the Broker, for the Seller, and delivering it to the respective Parties, has been held sufficient-Rucker v. Commeyer, 1 Esp. Rep. 105, cited as frequently recognized, 15 E. 107-but one of the Parties cannot sign as Agent for the other.-Wright v. Dannah, 2 Camp. 203.

No. 17.

Witnesses (at the least) that were present at the making thereof; nor unless it be proved that the Testator, at the Time of pronouncing the 29 Cur. II. c. 3. same, did bid the Persons present, or some of them, bear Witness Explained by that such was his Will, or to that Effect; nor unless such Nuncupa- Anne, c. 16, § 14. tive Will were made in the Time of the last Sickness of the Deceased, and in the House of his or her Habitation or Dwelling, or where he or she hath been resident for the Space of Ten Days or more next before the making of such Will, except where such Person was surprized or taken sick, being from his own Home, and died before he returned to the Place of his or her Dwelling.

XX. And be it further enacted, That, after Six Months passed after the speaking of the pretended Testamentary Words, no Testimony shall be received to prove any Will Nuncupative, except the said Testimony, or the Substance thereof, were committed to Writing within Six Days after the making of the said Will.

XXI. And be it further enacted, That no Letters Testamentary, or Probate of any Nuncupative Will, shall pass the Seal of any Court Probates of Nun cupative Wills. till Fourteen Days at the least after the Decease of the Testator be fully expired; nor shall any Nuncupative Will be at any Time received to be proved, unless Process have first issued to call in the Widow, or next of Kindred to the Deceased, to the End they may contest the same, if they please.

XXII. And be it further enacted, That no Will in Writing concerning any Goods or Chattels, or Personal Estate, shall be Raymond, 334. repealed, nor shall any Clause, Devise, or Bequest therein be altered or changed by any Words, or Will by Word of Mouth only, except the same be in the Life of the Testator committed to Writing, and after the Writing thereof read unto the Testator, and allowed by him, and proved to be so done by Three Witnesses at the least.

riners Wills ex

XXIII. Provided always, That, notwithstanding this Act, any Soldier being in actual Military Service, or any Mariner or Seaman Soldiers and Mabeing at Sea, may dispose of his Moveables, Wages, and Personal cepted. Estate, as he or they might have done before the making of

this Act.

XXIV. And it is hereby declared, That Nothing in this Act The Jurisdiction shall extend to alter or change the Jurisdiction or Right of Probate of of Courts saved. Wills concerning Personal Estates, but that the Prerogative Court of the Archbishop of Canterbury, and other Ecclesiastical Courts, and other Courts having Right to the Probate of such Wills, shall retain the same Right and Power as they had before, in every Respect, subject nevertheless to the Rules and Directions of this Act.

LO

XXV. And, for the explaining One Act of this present Parliament, intituled, An Act for the better settling of Intestates Estates, 22 & 23 Car. II. be it declared by the Authority aforesaid, That neither the said Act, c. 10. nor any Thing therein contained, shall be construed to extend to the Husbands not Estates of Femes Coverts that shall die intestate, but that their Hus- compellable bands may demand and have Administration of their Rights, Credits, of the Personal and other Personal Estates, and recover and enjoy the same, as they Estates of might have done before the making of the said Act. [Made perpetual by 1 Jac. II. c. 17, § 5]

(a) See Notes to Sec. 6. supra.-The following Note, relative to this Subject, was taken by the Editor:

"6th May, 1793. In the Prerogative Court. "WRIGHT against NETHERWOOD.

[A, makes a Will, leaving some Legacies, and appointing his Wife residuary Legatee; she died, leaving several Children. He married again, and had one Child by his second Wife. Afterwards A. with his Wife and all his Children perished by Shipwreck. The Will is not revoked.]

make Distribution

Wives.

1 Mod. 131.

their